B.C. Supreme Court has dismissed a driving prohibition challenge from a man who claims he burped while having a roadside breath test done.
Richard Dalgleish was given a driving prohibition on March 10, 2018, for failing an approved screening device (ASD) test. He challenged the test result in a prohibition review to the Superintendent of Motor Vehicles.
"Among other arguments the petitioner (Dalgleish) argued the prohibition should be set aside on the basis that the ASD did not register the fail as a result of the concentration of alcohol in his blood being not less than 80 mg of alcohol in 100 ml of blood," stated Justice Veronica Jackson said in her decision released July 18.
Dalgleish argued the fail reading resulted from "mouth alcohol" syndrome, which occurred because he burped "and thereby regurgitated stomach contents containing alcohol into his mouth, causing the falsely high reading."
The superintendent rejected the assertions and Dalgleish petitioned the court for a judicial review.
Jackson said the risk of a falsely high ASD result can be minimized by ensuring there are 15 clear minutes from the last drink to the ASD test.
But, she said, the only evidence regarding the timing of Dalgleish’s last drink capable of supporting the conclusion that the ASD fail result was the result of mouth alcohol syndrome came from Dalgleish himself.
The superintendent’s decision said the police officer had observed Dalgleish from the time of his driving to the administration of the test. The superintendent found there was no burping.
Further the superintendent said, “for regurgitation to impact the reliability of ASD results, the stomach contents containing alcohol need to be brought up into the mouth, and the petitioner provided no evidence that had been the case.”
Jackson said the superintendent had rejected the burping factor.
Dalgleish argued the superintendent's comment that he had "'not provided any evidence in [his] affidavit that [he had been] regurgitating or vomiting or bringing stomach contents up into [his] mouth’ is incorrect," Jackson said.
He said he had included burping in his affidavit.
“However, while the petitioner had deposed that he had been burping, he had not deposed that he had regurgitated stomach contents into his mouth via the burping,” Jackson said. “The superintendent’s decision can be interpreted as meaning not all burping will result in regurgitation.”
The judge decided she was satisfied the superintendent considered Dalgleish’s evidence with respect to the potential for the presence of mouth alcohol and discounted it as not credible.
